Stringent party discipline now stands in way of opposition’s desired outcome
From whom do MPs derive their mandate if not voters?
The Constitutional Court has clarified the question of whether Speaker of Parliament Baleka Mbete has the power to permit a secret ballot in a motion of no confidence vote.
Should she decide to allow for a secret ballot, the logic is that MPs, particularly members of the ANC caucus, would be free to vote on the basis of conscience.
In bringing the case before the court, opposition parties calculated that the only impediment to ANC MPs voting with them against President Jacob Zuma is the threat of losing their parliamentary seats.
The Constitutional Court walked a fine line. It did not go as far as instructing Mbete to allow the secret ballot. It affirmed her power to make case-by-case determination and to do so on a “rational and proper basis”.
Justice Mogoeng Mogoeng went to great pains to underscore the importance of the separation of powers and to reaffirm parliament’s prerogatives in running sits own affairs.
The judgment though also shows an awareness on the part of the judges of the deeper issues at play. Because of the principle of precedent, this judgment would have implications not only for the political impasse currently seizing parliament, but future political dilemmas.
This was not a pure legal question, but a political one that goes to the heart of the design, logic and function of our political system.
The call from the UDM, EFF and DA is that the ANC caucus departs from the practice of voting on the basis of party mandate or party discipline. They want ANC MPs to derive their mandate from outside of their party.
In the case of the motion of no confidence in the president, opposition parties are arguing the ANC caucus responds to the outcry of the people. This is not general practice in this country.
The opposition presumes the expressions of dissatisfaction following the axing of ex-finance minister Pravin Gordhan should be taken as an expression of the will of the people.
According to their argument, ANC MPs must derive their mandate from the crowds that supported the Zuma Must Fall campaign and marches. But in South Africa elections are the primary expression of the general will of the people.
By virtue of our electoral system voters vote for parties and not individuals.
It is political parties that then select or elect the individuals to represent the parties in parliament. Thus MPs get into parliament on a party mandate.
Between elections, MPs consistently consult with their party structures to keep abreast of and be responsive to the issues and challenges brought to the fore by party members.
Although parliament has innovated by assigning constituency offices to MPs in an attempt to strengthen the link between MPs and communities, MPs continue to derive their mandates from their parties.
Delegate representation, where constituencies periodically give individual MPs a laundry list of issues to advocate on their behalf, is not a formal practice in this country.
The consequence of the systemic design is that members of the political parties have greater proximity to political leaders and representatives than citizens that do not participate in party structures.
This means that if communities want to have greater influence over MPs and the mandate given to their representatives by parties they ought to be active in political parties.
The focus then needs to shift to a concern about internal party democracy not only in the governing party but in opposition parties as well. From whom do they derive their mandate if the voices of ordinary party members do not have real weight?
As things stand, the justifications for a secret ballot, and the Constitutional Court’s clarification does not address this question.
Under these circumstances it is unlikely that a secret ballot will provide sufficient incentive to depart from stringent party discipline.